PER CURIAM: Charles
Brown (Brown) appeals the granting of summary judgment for the respondents
arguing that the South Carolina Tort Claims Act (SCTCA) does not preclude a
claim for malicious prosecution solely because the cause of action includes the
element of malice. He also alleges that the statute of limitations on his negligent
hiring cause of action did not begin to run until after the last act of
tortious conduct, i.e., the malicious prosecution, as opposed to the alleged
unlawful arrest. We affirm.[1]

FACTS

On
April 17, 2001, Brown entered Heilig Meyers, a retail furniture store located
in Orangeburg, wherein a confrontation occurred between Brown and the store
employees. During the confrontation, a Heilig Meyers’ employee called the
Sheriff’s Department. As Brown began to leave the store, he was met at the
door by Deputy Winston Leonard (Leonard) of the Orangeburg County Sheriff’s
Department (hereinafter referred to as “Sheriff’s Department”). Deputy Leonard
interviewed the employees at the store and learned that Brown allegedly assaulted
and battered a store employee. At that point Leonard placed Brown under arrest
for assault and battery. The charges against Brown were nolle prossed on
November 3, 2003.

Brown filed this
action on April 21, 2005, and attempted to serve it on the Sheriff’s Department
on April 22, 2005. Brown alleges that the respondents maliciously prosecuted
him and that the Sheriff’s Department was grossly negligent in hiring and supervising
Leonard.

On March 22, 2006,
the respondents filed their motion for summary judgment based upon Brown’s
failure to state a claim for which relief could be granted and that the court
lacked personal jurisdiction over them. The court granted summary judgment for
the respondents. This appeal follows.

STANDARD
OF REVIEW

When
reviewing the grant of a summary judgment motion, this court applies the same standard of review as the trial court
under Rule 56, SCRCP. Cowburn v. Leventis, 366 S.C. 20, 30, 619
S.E.2d 437, 443 (Ct. App. 2005). Summary judgment
is proper when there is no genuine issue as to any material fact and the moving
party is entitled to a judgment as a matter of law. Rule 56(c), SCRCP. To
determine whether any triable issues of fact exist, the reviewing court must
consider the evidence and all reasonable inferences in the light most favorable
to the non-moving party. Law v. S.C. Dep't of Corrections, 368
S.C. 424, 434, 629 S.E.2d 642, 648 (2006).

“[W]hen plain, palpable, and indisputable facts exist
on which reasonable minds cannot differ, summary judgment should be granted.” Ellis
v. Davidson, 358 S.C. 509, 518, 595 S.E.2d 817, 822 (Ct. App. 2004).
However, “[s]ummary judgment is not appropriate where further inquiry into the
facts of the case is desirable to clarify the application of the law.” Bennett
v. Investors Title Ins. Co., 370 S.C. 578, 588, 635 S.E.2d 649, 654
(Ct. App. 2006). “Even when there is no dispute as to evidentiary facts, but
only as to the conclusions or inferences to be drawn from them, summary
judgment should be denied.” Nelson v. Charleston County Parks & Recreation Comm'n, 362 S.C. 1, 5, 605 S.E.2d 744, 746 (Ct. App. 2004).

LAW/ANALYSIS

Brown
argues that the circuit court erred in finding the Sheriff’s Department is
immune from liability on the malicious prosecution cause of action due to S.C.
Code Ann. §15-78-60(17) (Supp. 2003) of SCTCA since the tort includes the
element of malice. That section of the statute provides in pertinent part:

The
governmental entity is not liable for a loss resulting from:(17) employee conduct outside the scope of his official duties or which constitutes actual fraud, actual malice, intent to harm, or a
crime involving moral turpitude.

A strict reading of the
statute indicates that a cause of action based upon conduct of an employee
containing the element of malice cannot be maintained against the Sheriff’s Department.
In order to maintain an action for malicious prosecution, Brown must prove the
following: 1) the institution or continuation of original judicial proceedings,
either civil or criminal; 2) by, or at the instance of the respondents; 3)
termination of such proceedings in Brown’s favor; 4) respondents’ malice in
instituting such proceedings; 5) lack of probable cause; and 6) resulting
injury or damage. Jordan v. Deese, 317 S.C. 260, 262, 452 S.E.2d
838, 839 (1995). “To maintain a cause of action for malicious prosecution,
plaintiff must prove malice in instituting the proceedings.” Pritchett v.
Lanier, 766 F.Supp. 442, 453 (D.S.C. 1991) (citing Ruff v. Eckerd Drugs,
Inc., 265 S.C. 563, 220 S.E.2d 649 (1975). The aforementioned statutory
immunity from claims that require a showing of actual malice was applied in Gause
v. Doe, 317 S.C. 39, 451 S.E.2d 408 (Ct. App. 1994). In that case, this
court held that a cause of action for slander could not be maintained under
SCTCA due to the fact that a mandatory element of the cause of action required
a showing of malice. Id., 317 S.C. at 41-42, 451 S.E.2d at 409.

Brown
asserts that Law v. S.C. Dep’t of Corrections, 368 S.C. 424, 629 S.E.2d
642 (2006), stands for a contrary proposition. However, the trial court
properly distinguished that case from the one at hand because in Law the
court never addressed the malice immunity. Since the defense was not raised in Law and was not considered by the court, Law is not dispositive
precedent on the issue. Hutto v. Southern Farm Bureau Life Ins. Co., 259 S.C. 170, 173, 191 S.E.2d 7, 8 (1972) (“It is, of course, settled law that
‘a case cannot be considered as a binding precedent on a
legal point that was not argued in the case and not mentioned in the opinion.’”).
Therefore, in the case at hand, the trial court properly granted summary
judgment for the Sheriff’s Department as to Brown’s claim for malicious
prosecution.

However, the
malicious prosecution claim, as it pertains to Deputy Leonard, is not entitled
to the same analysis. Although the Sheriff’s Department is entitled to
statutory immunity from claims requiring a showing of malice, individual
employees are not entitled to benefit from that same immunity. Otherwise,
employees of organizations covered by SCTCA would have immunity from any
intentional tort. This concern was clearly considered by our legislature and
is resolved by § 15-78-70(b) which provides an exception for certain actions on
the part of governmental employees:

Nothing
in this chapter may be construed to give an employee of a governmental entity
immunity from suit and liability if it is proved that the employee’s conduct
was not within the scope of his official duties or that it constituted
actual fraud, actual malice, intent to harm, or a crime involving moral
turpitude.

S.C. Code Ann. § 15-78-70(b)
(Supp. 2003) (emphasis added). Therefore, claims against such employees for
torts which include these elements are not maintained under SCTCA but are
pursued privately against the individual tortfeasor. The SCTCA provides the
“exclusive civil remedy available for any tort committed by a governmental
entity, its employees, or its agents except as provided in Section
15-78-70(b).” S.C. Code Ann. § 15-78-20(b) (Supp. 2003) (emphasis added). Thus,
the circuit court erred in dismissing the malicious prosecution claim against
Deputy Leonard based upon the same immunity granted to the Sheriff’s
Department.

However,
despite Brown’s ability to pursue a claim against Leonard for malicious
prosecution, his claim nonetheless must fail since he has not demonstrated the
lack of probable cause as a matter of law. “Probable cause,
which is a defense to an action for malicious prosecution, has been defined as ‘the existence of such facts
or circumstances as would excite the belief of a reasonable mind, acting on
facts within the knowledge of the prosecutor, that the person charged was
guilty of the crime for which he was prosecuted.’” Lynch v. Toys "R''
Us-Delaware, Inc., Op. No. 4316 (S.C. Ct. App. Filed Nov. 27, 2007)
(Shearouse Adv. Sh. No. 41 at 68) (quoting Ruff v. Eckerds Drugs, 265 S.C. 563, 568, 220 S.E.2d 649, 652 (1975)). Thus, as far as determining the
existence of probable cause, the
facts must be regarded from the point of view of the prosecuting party; the
question is not what the actual facts were, but what the prosecuting party
honestly believed them to be. Law, 368 S.C. at 436, 629 S.E.2d at
649. Although the question of whether probable cause exists is ordinarily a jury question, in an action for malicious prosecution, it may be
decided as a matter of law when the evidence yields but one conclusion. Id.

Here,
Deputy Leonard acted with probable cause in arresting and procuring an arrest
warrant against Brown. Deputy Leonard arrived at the scene soon after the incident
occurred and after the police were called to respond to the scene because of a
disturbance at the business. The record shows that John Jordan and Sheila
Snell gave statements to Deputy Leonard alleging that Brown, without
provocation, punched Jordan in the face. The deputy also indicated to the
magistrate issuing the warrant that there was swelling to the right side of
John Jordan’s face. The magistrate ultimately found probable cause existed
upon issuance of the warrant. The existence of probable cause is apparent from
the record. Again, we must decide probable cause based on the facts presented
to the deputy. If the statements provided to the deputy were false or
incorrect, then potential liability exists as to those individuals who may have
provided any false or incorrect statements; however, such acts would not
diminish the existence of probable cause absent some basis for the deputy to
believe them to be false. Brown has also filed a malicious prosecution claim
against John Jordan and Helig Meyers based upon their allegedly false assertion
that he committed an assault; those claims are not the subject of this appeal.
Therefore, the fact that the statements were made to the deputy suggests the existence
of probable cause as a matter of law.

While
Brown asserts that Leonard did not see or observe Brown punching or assaulting
anyone, this assertion does not entitle Brown to maintain a malicious
prosecution action. The deputy provided statements under oath to the
magistrate about facts which suggested that a crime had been committed. The
magistrate found probable cause that a crime had been committed. On appeal,
Brown does not challenge the finding of probable cause by the magistrate.
Instead, the gravamen of Brown’s claim is that the statements made were
allegedly false. His inconsistent and conclusory allegation that no one
provided any statements to the deputy is unsupported by the record and the
record is lacking as to any basis upon which Brown acquired such personal
knowledge. See, e.g., Lujan v. Nat'l Wildlife Fed'n, 497
U.S. 871, 888, 110 S.Ct. 3177, 3188 (1990) (“The object of [Rule 56] is not to
replace conclusory allegations of the complaint or answer
with conclusory allegations of an affidavit.”); Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744 (1946)
(stating speculation and conjecture are not a substitute for probative facts); Zarecki
v. Nat'l R.R. Passenger Corp., 914 F.Supp. 1566, 1574 (N.D.Ill. 1996)
(“An affidavit that does not set forth the facts and
reasoning used in making a conclusion amounts to nothing more than a denial of
the adverse party's pleading.”). Indeed, the only evidence of record is that
the statements were made to the deputy outside of Brown’s presence. Moreover,
the only argument made to the court appeared in Brown’s brief and asserted only
that the warrant, without more, is not enough to establish probable cause. Accordingly,
a claim for malicious prosecution may not be maintained against Leonard under
these circumstances. Law enforcement must be free to reasonably act under the
circumstances presented without fear of the filing of a lawsuit absent any
evidence of wrongdoing or improper conduct.

Malice
does not necessarily mean a defendant acted out of spite, revenge, or with a
malignant disposition, although such an attitude certainly may indicate malice.
Malice also may proceed from an ill-regulated mind which is not sufficiently cautious
before causing injury to another person. Moreover, malice may be implied where
the evidence reveals a disregard of the consequences of an injurious act,
without reference to any special injury that may be inflicted on another
person. Malice also may be implied in the doing of an illegal act for one's own
gratification or purpose without regard to the rights of others or the injury
which may be inflicted on another person. In an action for malicious
prosecution, malice may be inferred from a lack of probable cause to institute
the prosecution.

Leonard was
investigating a complaint of an assault and battery, took witness statements
and observed the evidence on the scene. In so doing, Leonard made the
determination that there was probable cause to institute judicial proceedings
against Brown for assault and battery. Brown has failed to establish by
competent facts that at any time Leonard lacked probable cause or was operating
with malice.

Finally, Brown
argues that his negligent hiring and supervision claim, as opposed to the
malicious prosecution claim, was improperly barred based on the statute of
limitations. Brown alleges that the statute of limitations should not have
begun to run on his claims for negligent hiring and supervision until his
charges were nolle prossed on November 3, 2003. The trial judge in his order
granting summary judgment found that the statute of limitations on that claim
began to run on April 17, 2001, the date of his arrest. The trial judge
concluded that upon his arrest Brown knew, or should have known by the exercise
of reasonable diligence, that the cause of action existed. Epstein v. Brown,
363 S.C. 372, 380, 610 S.E.2d 816, 820 (2005). We agree with this conclusion.
A negligence action arising after April 5, 1988, must be commenced within three
years “after the person knew or by the exercise of reasonable diligence should
have known that he had a cause of action.” S.C. Code Ann. § 15-3-535 (Supp. 1996); Christensen v. Mikell, 324 S.C. 70, 73, 476 S.E.2d 692, 694
(1996). “The exercise of reasonable diligence” means that an injured party
must act promptly “where the facts and circumstances of an injury would put a
person of common knowledge and experience on notice that some right of his has
been invaded or that some claim against another party might exist.” Wiggins
v. Edwards, 314 S.C. 126, 128, 442 S.E.2d 169, 170 (1994) (quoting Snell
v. Columbia Gun Exchange, 276 S.C. 301, 303, 278 S.E.2d 333, 334
(1981)). Furthermore, in determining when the limitations period begins to
run, the proper focus is upon the date of discovery of the injury, not the date
of the discovery of the wrongdoer. Wiggins, 314 S.C. at 128, 442
S.E.2d at 170. Regardless of whether the SCTCA two year statute of limitations
or the standard three year statute of limitations is applicable, Brown’s claim
for negligent hiring and supervision was filed outside of either statute of
limitations. Brown didn’t file his complaint until April 22, 2005, four years
and five days after his time to file began to run. Accordingly, although
Brown’s claim for malicious prosecution was timely, the claim for negligent
hiring and supervision was properly dismissed for being untimely.[2]

Since we ultimately
affirm the trial court on both issues presented, we need not address the
respondents’ contention that the court lacked personal jurisdiction due to
improper service of process. Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding that the court need not rule on remaining issues when
the disposition of a prior issue is dispositive of the appeal).[3]

CONCLUSION

Upon a careful
review of the record, Brown’s cause of action for negligent hiring and supervision
was properly dismissed as being untimely. Further, SCTCA precludes Brown from
bringing a claim for malicious prosecution against the Orangeburg County
Sheriff’s Department. In addition, while the malicious prosecution claim
should not have been dismissed as to Deputy Leonard based upon the same
exception for malice available to the governmental entity under SCTCA, the
dismissal of the cause of action is nonetheless appropriate due to the
existence of probable cause as a matter of law.

For the foregoing
reasons, the order of the trial court is hereby

AFFIRMED.

HUFF and PIEPER, JJ., and CURETON, A.J., concur.

[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.

[2] No issue on appeal has been presented as to the
running of the statute of limitations on the malicious prosecution claim as it
was never addressed by the trial court due to dismissal of the claim under the
SCTCA.

[3] Brown includes in his brief on appeal that he
also had an outstanding claim for false arrest. However, no such claim appears
in his complaint and the argument was never presented to or ruled upon by the
trial court. As such it is not preserved for us to review. Floyd v. Floyd, 365 S.C. 56, 73, 615 S.E.2d 465, 474 (Ct. App. 2005) (holding an issue cannot
be raised for the first time on appeal, but must have been raised to and ruled
upon by the trial court to be
preserved for appellate review).